DOJ Seeks SCOTUS Review of District Court’s Restrictions on ICE Stops in LA

In July, I noted that Judge Maame Ewusi-Mensah Frimpong of the U.S. District Court for the Central District of California had issued a temporary restraining order (TRO) in Perdomo v. Noem, barring ICE officers from considering certain factors when stopping and questioning suspected illegal aliens in her district. DOJ sought a Ninth Circuit stay of that TRO, and while that court narrowed it ever-so-slightly, it otherwise let those restrictions stand. DOJ now wants the Supreme Court to review those lower-court orders, contending in an emergency motion that they “threaten to hobble” ICE enforcement in an area (Los Angeles and its vicinity) where about 10 percent of the two million residents are here illegally.

Laws Governing Immigration Stops

Immigration enforcement is generally civil, not criminal, in nature, and therefore certain constitutional protections afforded criminal defendants (free counsel for indigents, Miranda warnings, etc.) don’t apply in immigration investigations and prosecutions.

That said, the Fourth Amendment’s protections against “unreasonable searches and seizures” have been found to apply in the immigration context, and rules governing those protections have been developed through statute, regulation, and case law.

For example, section 236(a) of the Immigration and Nationality Act (INA) allows immigration officers to take aliens believed to be removable from the United States into custody on administrative warrants pending a decision on whether they are to be removed.

Arrests with warrants are not the only option, however. Section 287(a)(2) allows officers to “arrest any alien in the United States” without a warrant if they have “reason to believe that the alien so arrested is in the United States in violation of” the INA and regulations and “is likely to escape before a warrant can be obtained for his arrest”.

Which raises the question of how immigration officers can determine whether an individual is (1) an alien, and (2) in the United States in violation of law.

The answer can be found in section 287(a)(1) of the INA, which authorizes immigration officers “to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States”.

Critically for this analysis, the regulatory “standards for enforcement activities” at 8 C.F.R. § 287.8(b) implement that provision, and state, in pertinent part:

Interrogation and detention not amounting to arrest.

(1) Interrogation is questioning designed to elicit specific information. An immigration officer, like any other person, has the right to ask questions of anyone as long as the immigration officer does not restrain the freedom of an individual, not under arrest, to walk away.

(2) If the immigration officer has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States, the immigration officer may briefly detain the person for questioning. [Emphasis added.]

Those highlighted excerpts should be familiar terms for every first-year law student, given they were developed through multiple late-20th century Supreme Court opinions that all of them must study.

In its landmark 1968 decision in Terry v. Ohio, for example, the Court held that “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person” under the Fourth Amendment, and to be legally valid, such seizure must be “reasonable”.

The Court majority there continued, explaining that “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Sound familiar?

The Court built on Terry in the immigration context in its 1975 opinion in U.S. v. Brignoni-Ponce, a case involving a “roving patrol” of Border Patrol agents near a highway immigration checkpoint that was then closed due to inclement weather.

The majority there concluded that the Fourth Amendment “forbids stopping or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens.”

Importantly, though, the Brignoni-Ponce Court was quick to add that: “Because of the limited nature of the intrusion, stops of this sort may be justified on facts that do not amount to the probable cause required for an arrest.” (Emphasis added.)

Even that “probable cause” standard for a formal arrest isn’t as strict as you might think.

Justice Kagan, writing for the majority in the Court’s 2014 opinion in Kaley v. U.S., described probable cause as “not a high bar: It requires only the kind of fair probability on which reasonable and prudent people, not legal technicians, act”.

Back to Brignoni-Ponce, the Court there held that after-the-fact inquiries into reasonable suspicion “turn on the totality of the particular circumstances” — that is the factors that, together, led the officer to make the stop. Hence, it’s not appropriate for a reviewing court to look at those factors in isolation; they must be considered in toto to determine whether reasonable suspicion existed at the time of a stop.

Judge Frimpong’s TRO

The plaintiffs in Perdomo — five individuals (three illegal aliens and two U.S. citizens) and three organizations — alleged immigration officials “have an ongoing policy, pattern, and/or practice of conducting detentive stops in” the Central District of California “without reasonable suspicion that the person to be stopped is within the United States in violation of U.S. immigration law, in contravention of the Fourth Amendment”.

On that ground, they asked Judge Frimpong to issue a TRO barring federal officials from “conducting detentive stops for the purposes of immigration enforcement without first establishing individualized, reasonable suspicion that the person to be stopped is unlawfully in the United States.”

In her July 11 order granting that request, the judge concluded the plaintiffs were “likely to succeed in proving”, inter alia, “that the federal government is … conducting roving patrols without reasonable suspicion”, and she therefore barred the federal government from continuing to do so.

Specifically, her TRO prevents immigration officers from relying on any of the following four factors — “alone or in combination” — “to form reasonable suspicion for a detentive stop, except as permitted by law”: (1) “apparent race or ethnicity”; (2) “speaking Spanish or speaking English with an accent”; (3) “presence at a particular location (e.g. bus stop, car wash, tow yard, day laborer pick up site, agricultural site, etc.”); and (4) “the type of work one does”.

She also ordered those federal immigration officials to — again, inter alia — “maintain … documentation of detentive stops, including factors supporting reasonable suspicion” and provide that documentation “to Plaintiffs’ counsel on a regular schedule”. (Emphasis added.)

Trust me when I say first-year law students aren’t taught any of those restrictions when studying the Fourth Amendment, and also that in my 33 years of legal experience — much of it reviewing immigration stops and arrests — I have never seen anything like them, or an order requiring officers to document the circumstances of all their Terry stops and hand it over to outside lawyers.

The Ninth Circuit’s Decision

Not surprisingly, DOJ filed an emergency motion to stay that TRO with the Ninth Circuit on July 14, complaining (once more, inter alia) that the district court had issued “a sweeping, district-wide injunction that threatens to hobble lawful immigration enforcement by hanging a Damocles sword of contempt over every immigration stop”, and that “appears to be a first step to placing federal immigration enforcement under judicial monitorship”.

The three-judge panel of the Ninth Circuit that heard that motion, however, was largely unswayed. I say “largely” because in its order largely denying that motion, the panel did consider the “except as permitted by law” modifier in the TRO to be “impermissibly vague”, noting: “’what is permitted by law’ is not clear to lawyers and judges, much less lay persons who are the ‘target of the injunction’”.

DOJ’s Application to the Supreme Court

And, not surprisingly, DOJ has now filed an application with Justice Kagan (the circuit justice for the Ninth Circuit) to stay Judge Frimpong’s TRO.

DOJ argues that the district court’s injunction “threatens to upend immigration officials’ ability to enforce the immigration laws in” that district, which is not only “the most populous district” in the country, but also one that “at best estimate … harbors some 2 million illegal aliens out of its total population of nearly 20 million people, making it by far the largest destination for illegal aliens”.

The department contends that — in addition to the fact that approximately 10 percent of the people in the Central District of California are illegal aliens — the restrictions in the district court’s order are particularly problematic given that:

many locations unlawfully employ illegal aliens and are known to hire them on a day-to-day basis; that certain types of jobs — like day labor, landscaping, and construction — are most attractive to illegal aliens because they often do not require paperwork; that the vast majority of illegal aliens in the District come from Mexico or Central America; and that many only speak Spanish.

Pursuant to that order, DOJ notes, “ICE agents, under threat of contempt, cannot detain anyone in the” Central District of California “solely based on those factors — not even after encountering someone who speaks only Spanish and works as a day laborer at a worksite that has been cited 30 times for hiring illegal aliens as day laborers”.

Similarly, the department complains that:

the injunction forecloses reasonable suspicion to stop an individual observed at length speaking exclusively Spanish, wearing the uniform of an employer known to employ illegal aliens, and shopping at a business known to be frequented by illegal aliens — simply because suspicion in such a case would be furnished by the suspect’s language, job type, and location.

As for contentions that ICE is conducting a “reign of terror” in the City of Angels, DOJ’s application reveals that: (1) there are around 290 “law enforcement officers in six offices” in the agency’s Los Angeles Enforcement and Removal (ERO) field office; (2) they’re charged with enforcing the INA “in seven California counties with a combined population of over 20 million people”; and (3) they only processed somewhere around 2,805 civil immigration arrests “in the Los Angeles area” between June 1 and the middle of July — affecting roughly .14 percent of the estimated illegal aliens living there.

“Potential Contempt Trap”

Plainly, if ICE stopped and briefly detained individuals based solely on race, or because they can’t speak English or have an accent, or because they’re at a particular business or do certain jobs, such stops would be constitutionally dubious.

When those factors converge, however, an ICE officer may reasonably conclude based on his or her law-enforcement experience or on other intelligence that an individual merits a brief detentive stop.

But under Judge Frimpong’s order, those stops, too, would be illegal, and even if that officer considered additional factors and made a stop, the officer would be forced to document it and send it to a team of immigrants’ advocates who will pore over it and flyspeck it to death.

DOJ argues this “injunction wrongly brands countless lawful stops as unconstitutional, thereby hampering a basic law-enforcement tool, while turning every single stop in” a massive district where 10 percent of the population is here illegally “into a potential contempt trap”. Don’t be surprised if a majority of justices agrees.